Justice Scalia Is a Homophobe

Gay, lesbian, bisexual and transgender people won two victories in the Supreme Court today. We expected the big one: the fourth in a series of opinions by Justice Anthony Kennedy—one of the last sitting Reagan appointees—vindicating our right to legal equality. The unexpected one was smaller in public impact but also significant: Justice Antonin Scalia’s disclaimer that he is not personally troubled by the fact that we can marry each other. After a series of opinions, speeches and public comments expressing his strong disapproval of us, vigorously defending society’s right to express this attitude in discriminatory public policies, Scalia begins his characteristically vitriolic dissent by protesting that “the substance of today’s decree is not of immense personal importance to me.”

Yeah, right. This strikes me as the least sincere disavowal of homophobia I have encountered since former Majority Leader Dick Armey tried to argue that his reference to me as “Barney Fag” was just a mispronunciation of my last name. What we have here instead marks a tactical shift.

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Apparently, Justice Scalia has come to realize that since public opinion in America has moved away from anti-LGBT prejudice, heavily salting his writings with a personal distaste for the idea that we should enjoy the same rights as our heterosexual brothers and sisters weakens the appeal of his legal reasoning. (Compare his angry screed in the sodomy case, essentially justifying the criminalization of private sexual conduct between consenting adults, with Justice Clarence Thomas’s terse statement that while he would have voted against the “silly” Texas statute in question, he believed it was a deeply flawed judgment that the Legislature was constitutionally permitted to make.) So in an unexplained abandonment of his vigorously anti-LGBT prior stance, Justice Scalia asks that his pronouncement that the Court’s opinion calls our democracy into question be judged not on the substantive issue, but as an expression of his view that “allow[ing] the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

The inconsistency between this dissent and several of Scalia’s prior opinions deepens my skepticism about his newfound tolerant stance. Even before reaching this, there is the question of how many people Scalia thinks were on the Court when it ordered a much further-reaching social transformation in its decisions on race—including, of course, on who could marry whom.

Second, of very contemporary relevance, is he arguing that while the elite nine should never initiate social transformations, they should be free to undo those they don’t like, even when they were the product of action by the popularly elected branches? Scalia enthusiastically voted to invalidate the key part of the transformational Voting Rights Act—only a few years after it had been readopted by large non-elite Congressional majorities. And he was about as contemptuous yesterday of Chief Justice John Roberts for his judicial restraint in declining to undo the major transformation of health care policy as he is today of Justice Kennedy's activism on behalf of equality.

This is not simply an example of ideologically-driven inconsistency, of invoking the principle of democracy undiluted to denounce the Court when it invalidates one policy on Constitutional grounds and hailing it as a defender of our basic rights when its strikes down another. In the case of same-sex marriage, the debate which Scalia praises as “American democracy at its best” was frozen until the unelected Massachusetts Supreme Judicial Court—in this case only seven “select etc” -initiated a social transformation in our state.

Only nineteen years ago, I helped lead the fight in Congress against the Defense of Marriage Act. We lost big. Every Republican but one in the House and Senate combined joined with heavy Democratic majorities in both bodies to vote yes. Only twelve senators and 67 representatives stood in opposition. I could not deny that, at the time, this accurately represented prevailing public opinion. In recognition of this, and in the interest of keeping this from being the issue that drove a deep wedge between LGBT voters and those politicians who supported us most of the time, I campaigned in 1996 for some in that category who had agreed to DOMA—including, most notably, Bill Clinton and Sen. Paul Wellstone.